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UNITED STATES v. GUTIERREZ

June 29, 1995

UNITED STATES OF AMERICA against ADOLFO L. GUTIERREZ, Defendant.


The opinion of the court was delivered by: JOANNA SEYBERT

 SEYBERT, District Judge:

 In the instant prosecution, defendant Adolfo L. Gutierrez is charged with possession of cocaine with the intent to distribute, and conspiracy to possess cocaine with the intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii), and 18 U.S.C. § 2. The defendant initially was arrested on February 24, 1992, after a warrantless search by law enforcement agents disclosed approximately three kilograms of cocaine in the trunk of the automobile he was driving. He was released the next day without being formally charged. According to the Government, both the means whereby the defendant was searched and arrested, and the delay in bringing formal charges against him, stemmed from an ongoing investigation of an individual named Eliseo Navarette, who purportedly was engaged in drug trafficking and money laundering activity in the New York City area.

 On June 15, 1993, after the Navarette investigation had been completed, the Government filed a complaint, and obtained a warrant for the defendant's arrest, based on the aforementioned seizure of contraband on February 24, 1992. The defendant was arrested pursuant to this warrant on August 30, 1994, as he arrived at Miami International Airport upon disembarking a flight from Colombia. He subsequently was indicted on September 8, 1994.

 The defendant now moves to dismiss the indictment on Sixth Amendment speedy trial grounds, and to suppress all physical and testimonial evidence obtained from him, and the automobile he was driving, on February 24, 1992. A hearing was held concerning these matters on June 6, 1995, whereupon testimony was provided by Sergeant George Hanken and Detective Dennis Casey of the New York City Drug Enforcement Task Force. For the reasons that follow, the defendant's motions are denied in their entirety.

 DISCUSSION

 I. Sixth Amendment Speedy Trial Claim

 The Sixth Amendment provides in pertinent part that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . ." U.S. Const. amend. VI. This right attaches when the putative defendant in some way becomes an accused, which means at the time of the indictment, the information, or the arrest, whichever comes earlier. See United States v. MacDonald, 456 U.S. 1, 7, 102 S. Ct. 1497, 1501, 71 L. Ed. 2d 696 (1982) ("Although delay prior to arrest or indictment may give rise to a due process claim under the Fifth Amendment, or to a claim under any applicable statutes of limitations, no Sixth Amendment right to a speedy trial arises until charges are pending.") (citing United States v. Lovasco, 431 U.S. 783, 788-89, 97 S. Ct. 2044, 2047-48, 52 L. Ed. 2d 752 (1977)); United States v. Marion, 404 U.S. 307, 320, 92 S. Ct. 455, 463, 30 L. Ed. 2d 468 (1971).

 The Supreme Court instructs that the following four factors be considered in evaluating whether a criminal defendant's Sixth Amendment right to a speedy trial has been violated: (1) whether the "delay before trial was uncommonly long" (i.e., this refers to the duration of time between (a) the earlier of the arrest or indictment, and (b) the filing of the motion to dismiss the indictment); (2) "whether the government or the criminal defendant is more to blame for that delay;" (3) "whether, in due course, the defendant asserted his right to a speedy trial" (this considers whether the defendant knew of the charges pending against him); and (4) the prejudice sustained by the defendant as a result of the delay. Doggett v. United States, 505 U.S. 647, 112 S. Ct. 2686, 2690, 120 L. Ed. 2d 520 (1992); see Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101 (1972). In Doggett, the Supreme Court held that a delay of eight-and-one-half years between the defendant's indictment and his arrest violated his Sixth Amendment right to a speedy trial, where the Government was negligent in pursuing the defendant during that period of time, and six years of the delay was attributable to the Government's negligence. See Doggett, 112 S. Ct. at 2694.

 A delay of one year is sufficient to trigger judicial review for a Sixth Amendment violation. See id. Further, where this threshold period of delay is exceeded, an accused need not show actual prejudice since excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or identify, such as through the loss of witnesses, or the dimness of memories. See id. at 2691, 2693. This presumption increases in importance with the length of the delay. See id. at 2693.

 As a threshold issue, however, the Court first must determine from what point the Sixth Amendment speedy trial clock begins to run. The parties are in dispute as to this matter; the Government contends that the speedy trial clock runs from the defendant's arrest pursuant to an outstanding arrest warrant, on August 30, 1994, while the defendant argues that the clock runs from the defendant's initial arrest, on February 24, 1992. The parties cite United States v. Bloom, 865 F.2d 485 (2d Cir.), cert. denied, 490 U.S. 1027 (1989) as relevant precedent within the Second Circuit. The following language in Bloom is decisive in resolving this dispute:

 
The key Sixth Amendment issue is whether [the defendant] was either arrested or subjected to substantial restrictions for purposes of answering a criminal charge. We believe he was not, for the reasons stated above. The restrictions imposed after his prompt release were intended only to protect an ongoing investigation and did not trigger Sixth Amendment rights.

 Id. at 491 (emphasis added)

 In the instant case, as in Bloom, defendant Gutierrez was promptly released upon his initial arrest, without being criminally charged, in order to protect an ongoing investigation. A federal warrant for the defendant's arrest was not obtained until June 15, 1993, and Gutierrez was not subsequently arrested until August 30, 1994, when he attempted to re-enter the United States from Colombia. Accordingly, Gutierrez' Sixth Amendment speedy trial rights were not implicated until August 30, 1994, the date on which he was arrested pursuant to an outstanding arrest warrant. Because less than six months elapsed between this date and February 24, 1995--the date that the defendant filed the present motion to dismiss the indictment--there is no basis for Gutierrez to argue that his Sixth Amendment rights have been violated. See United States v. Vassell, 970 F.2d 1162, 1164 (2d Cir.) ("Unless the delay [is 'presumptively prejudicial'], examination of the other Barker factors is unnecessary."), cert. denied, 113 S. Ct. 627 (1992). This result is ...


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